The Weekly Daf #43
Bava Basra 44-50
Week of 26 Kislev-2 Teves 5755 / 29 Nov.-5 Dec. 19944
By Rabbi Mendel Weinbach, Dean, Ohr Somayach Institutions
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A Two-Edged Bias
The Case:
Reuven borrows money from Shimon and his only field thus becomes
mortgaged to his creditor. Reuven then sells this field to Levi, clearly
declaring that if it is subsequently claimed by a creditor he will have
no responsibility for compensation. Yehuda attempts to take the field
from Levi on the grounds that the field was stolen from him. Reuven
knows that Yehuda's claim is unfounded and wishes to testify in court on
behalf of Levi.
The Rule:
Reuven is disqualified from testifying because of suspected partiality.
He has a vested interest in Levi retaining the field so that his
creditor, Shimon, will be able to confiscate it as payment for his debt.
The Problem:
Whether or not Reuven testifies on behalf of Levi he stands no risk of
other property being taken in payment of the debt since he owns no other
property. His only possible interest in testifying in behalf of Levi is
his desire to protect his creditor from losing the opportunity to collect
his debt. But by so testifying he will expose the buyer, Levi, to the
risk of a loss of his property to confiscation without compensation. Why
should we consider him more partial to protecting the creditor than the
buyer and therefore disqualify him?
The Solution:
If the field is lost to Yehuda's claim Reuven is in danger of being what
King David describes in Psalm 37 as "the wicked man who borrows and who
does not repay" since his creditor will have no field to collect from.
The loss which the buyer Levi may suffer from the confiscation of the
creditor concerns him much less for he already informed him in advance
that he was entering into a high risk deal with no hope for compensation.
Reuven's bias is therefore clearly in favor of his creditor and he cannot
testify in his behalf.
Bava Basra 33b
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Coercion or Liberation?
A Jew who refuses the order of a Beis Din to divorce his wife with a get
may be subjected to physical pressure until he complies. Rambam (Laws of
Divorce 2:20) thus explains why such a get is valid even though it was
apparently given under duress:
Only when one sells, gives away something or does anything he is not
obligated to do under duress is he considered to be acting against his
will. When he is pressured into doing something which the Torah requires
or avoiding something forbidden he is actually acting according to his true
will which his evil inclination has attempted to enslave. The Jew who
wishes to be a part of his holy nation and to do what is right but refuses
to obey the order to divorce is a prisoner of his evil inclination.
Pressure is applied to weaken the hold of his captor and this liberated Jew
is considered as having expressed his true will when he complies with the
order of the court.
Bava Basra 48a
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